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Case: 09-30925   Document: 00511366200   Page: 8   Date Filed: 01/31/2011







               deceive” the public.  See In re R.M.J., 455 U.S. at 202.  A depiction of a scene or
                                                                                                           4
               picture can be presented in a non-deceptive way in an attorney advertisement.
               See Zauderer, 471 U.S. at 647.  The portrayal of a judge in an advertisement

               may also be presented in a way that is not deceptive.  See Alexander v. Cahill,

               598  F.3d  79,  92S95  (2d  Cir.  2010),  cert.  denied,  79  U.S.L.W.  3102  (2010)

               (reviewing advertisement that “depicted a judge in the courtroom and stated

               that the judge is there to make sure [the trial] is fair”) (quotations omitted)

               (alteration  in  original).    Further,  and  as  the  district  court  determined,  it  is

               possible  for  an  attorney  to  present  past  results  in  a  manner  that  is  not

               misleading.    Public  Citizen,  642  F.  Supp.  2d  at  553.    Finally,  it  is  similarly

               obvious that a nickname or motto that might imply an ability to obtain results

               can be employed in a non-deceptive fashion.
                       Because  these  five  challenged  rules  all  target  speech  that  is  only

               potentially misleading, the First Amendment is implicated.  The court must

               review these Louisiana Rules under Central Hudson or Zauderer.  In accordance

               with these cases, we apply Central Hudson to the speech restrictions in Rules

               7.2(c)(1)(D), (J), and (L) and Zauderer to the disclosure obligations set forth in

               Rules 7.2(c)(1)(I) and (c)(10).

                       B.     Applying Central Hudson to Advertising Restrictions

                       Under Central Hudson, a restriction on commercial speech survives First

               Amendment scrutiny if: (1) “the asserted governmental interest is substantial,”

               (2) the regulation “directly advances” that interest, and (3) the regulation “is not

               more extensive than is necessary to serve that interest.”  Thompson v. W. States
               Med. Ctr., 535 U.S. 357, 367 (2002) (internal quotation omitted).  This test is




                       4   Because  we  hold  that  at  least  one  type  of  speech  that  triggers  Rule  7.2(c)(10)’s
               disclaimer formatting requirements is potentially misleading, we need not address whether
               any other triggering speech is also potentially misleading.

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